The Kansas Legislature on Wednesday banned an abortion procedure often used in the second trimester of pregnancy.
Abortion foes targeted the technique as a “grotesque” dismemberment of a fetus. The procedure is used in about 8 percent of all abortions in Kansas.
The Kansas House approved SB 95 on a 98-26 vote. The act now goes to Republican Gov. Sam Brownback, who has promised to sign it into law.
Opponents say the bill echoes a political strategy used a decade ago – using graphic language to stir emotional debate – to ban a form of late-term abortion. They also say it could outlaw one of the safest methods for ending a pregnancy.
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Those abortion-rights supporters remain unsure of the impact of the legislation, which is also under consideration in Missouri and Oklahoma. They could not say whether they would challenge it in court.
“We’ve never seen this language before,” said Elizabeth Nash, senior state issues associate for the Guttmacher Institute, which supports abortion rights. “It’s not medical language, so it’s a little bit difficult to figure out what the language would do.”
The Kansas bill bans a “dismemberment” abortion. That’s defined in the legislation as a physician removing the “unborn child one piece at a time” by using “clamps, grasping forceps, tongs (and) scissors.”
Supporters say the bill effectively bans what is known as the dilation and evacuation procedure used in 585 out of 7,485 abortions in Kansas during 2013.
Abortion opponents make no apologies for the vivid imagery in the bill. They said dilation and evacuation is a “brutal” form of abortion that the public needs to better understand.
They also argue that the U.S. Supreme Court has signaled it might uphold the ban based on previous cases testing prohibitions of so-called partial-birth abortion, a procedure in which a fetus is partially removed intact from the woman’s body before being terminated.
“We believe we have five votes that would allow us to ban this particular procedure,” said Mary Spaulding Balch, director of state legislation for National Right to Life.
Balch said public opinion will ultimately side with the ban.
“This procedure is very hard to defend,” she said. “I want to talk about what happens to the unborn child during an abortion and more particularly during this type of abortion.”
Abortion-rights supporters say the bill’s graphic language draws from the same playbook used to win a federal ban on partial-birth abortion ultimately upheld by the U.S. Supreme Court. They say the bill uses sensational, nonmedical language to win supporters.
While the bill targets a procedure, abortion-rights supporters believe it aims to limit second-trimester abortions with a long-term goal of banning all abortion.
The legislation isn’t “meant to correspond to medical reality,” said Caitlin Borgmann, a constitutional law professor at the City University of New York.
“It’s meant to try to create an inflammatory description that people are going to read and then support the bill because their instinct is that this sounds terrible,” said Borgmann, former state strategies coordinator for the American Civil Liberties Union’s Reproductive Freedom Project.
The bill, Balch said, was drafted to make clear what happens during the procedure.
“You can sugarcoat it. You can obfuscate the whole issue by using terms that sanitize what is happening,” Balch said. “When you are talking to a patient, you don’t use terms that they don’t understand, you use terms that they understand. I think that is a valid approach.”
Practical effect untested
The bill’s practical effect remains untested. While abortion-rights supporters worry the bill could threaten existing constitutional rights to abortion, they are still studying its implications.
Abortions in Kansas are allowed up to 22 weeks into a pregnancy. The ban applies to a procedure generally used in pregnancies after 13 weeks, but it’s not clear to what extent those abortions would be outlawed – if at all.
Abortion-rights supporters say the bill eliminates a “tried and true” practice considered to be the safest procedure in the second trimester.
Other methods for performing a second-trimester abortion include inducing labor or using a technique where medicine is used to terminate the pregnancy.
The president of Planned Parenthood Advocates of Kansas and Mid-Missouri said the law would force physicians to find alternatives to a procedure “considered the safest across the board for women’s health.”
Laura McQuade said other options to the banned procedure might pose an undue burden on women because they might require hospitalization or extend the time for the abortion to two or three days.
“This legislation could force physicians to provide substandard care to their patients,” McQuade said in a statement.
The bill, she said, “puts women in harm’s way by denying doctors the ability to provide the safest care available for their patients.”
Abortion opponents said the latest abortion restriction was likely after the U.S. Supreme Court upheld the ban on partial-birth abortion in 2007.
“Abortion attorneys on both sides knew that this bill was the next step,” said Kathy Ostrowski, legislative director of Kansans for Life. “It was inevitable this was coming. It was a matter of timing.”
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How they voted
Here’s how south-central Kansas lawmakers voted on SB 95. The bill passed 98-26.
Democrats voting yes: Brandon Whipple, Wichita; Ed Trimmer, Winfield.
Republicans voting yes: All area Republicans voted yes.
Democrats voting no: Carolyn Bridges, John Carmichael, Gail Finney, Roderick Houston, Ponka-We Victors, Jim Ward, Wichita.
Democrats absent: Tom Sawyer, Wichita.